A jury convicted defendant Kenneth Ray Bivert of the first degree murder of Leonard Swartz. (Pen. Code, § 187.)*fn1 The jury found that defendant used a deadly weapon in the commission of the murder (§ 12022, subd. (b)) and found true the special circumstance allegations of prior conviction of first degree murder and lying in wait (§ 190.2, subd. (a)(2), (15)). The jury further convicted defendant of assault with a deadly weapon by a life prisoner (§ 4500) and found he had been convicted in 1988 of three counts of first degree murder (§§ 187, 1170.12, subd. (c)(2), 667, subd. (a)).

After a penalty trial, the jury returned a verdict of death. The court denied a motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).)

I. FACTS A. Guilt Phase

Defendant was convicted of charges related to the November 23, 1996, assault of inmate Rick Dixon and the February 5, 1997, murder of inmate Leonard Swartz.

1. The People's Case a. Assault of Rick Dixon

In the fall of 1996, defendant and Dixon were inmates at the Salinas Valley State Prison (SVSP) in Monterey County. Building B, in which both were housed, was self-segregated by the inmates according to race; the White and Hispanic inmates occupied one side of the dayroom and yard, while the Black and other-race inmates occupied the other. Dixon understood defendant to be "in charge of 'the woods,' " a group of White inmates. Defendant approached Dixon and told him there was a "piece of shit" White pedophile named Dennis, who had purchased drugs from a Black inmate, an act considered "bad business" by "the woods." Defendant told Dixon that if he wanted to "earn his bolts" he would have to "deal with" inmate Dennis. Dixon understood this to mean that if he wanted to gain membership in "the woods" he would have to stab Dennis. Dixon refused, even though he knew he might suffer consequences for not acceding to defendant's request. Dixon later overheard defendant say he wanted to "do something drastic to get moved . . . to Pelican Bay [State Prison] where . . . he could get more run of the place."

On November 23, 1996, as Dixon was walking toward his cell, inmate Steve Petty snuck up behind him, wrapped shoestrings around his neck, and pulled him backward. Defendant then approached and stabbed Dixon with a homemade ice pick seven times in his upper chest, sides, and lower abdomen. A contrasting version of events was offered by inmate D,*fn2 who witnessed the assault; he testified it was defendant who grabbed Dixon from behind. He also saw Petty toss something into the shower area.

A correctional officer*fn3 heard the commotion, sounded the alarm, and told all inmates to drop to the ground where they stood. Defendant and Petty were close to one another, separated from the other inmates in the room, and were the inmates closest to the shower area. Officers saw no blood on defendant's clothing, but they observed what looked like rope burns on his hands and found a weapon in the shower. While recovering from his wounds in the prison infirmary, Dixon viewed a photo lineup and identified defendant and Petty as his assailants. Dixon indicated that defendant had told him Steve Petty was his "road dog," or crime partner, and that they "ran around together" in prison.

Defendant was transferred to administrative segregation at Pelican Bay State Prison pending the investigation into the stabbing. He was returned to the general population at SVSP in early 1997. While defendant was on the prison yard shortly after his return, inmate D asked him if he was going to try to get his old prison job back. Defendant replied that he "wasn't going to be around that long" because "he was going to hit a suspected child molester" who "needed to be gutted."

b. Murder of Leonard Swartz

Inmate C's cell was on the first tier, directly beneath defendant's on the second tier, and through the ventilation system he could hear sounds from defendant's cell. A few days before February 5, 1997, inmate C could hear scraping from upstairs and, suspecting that defendant was making an inmate-manufactured weapon, or shank, he "hollered up and asked the people that lived upstairs if they wanted everybody to know what they were doing." Defendant answered that it didn't matter to him if anybody heard what he was doing.

Over breakfast on the morning of February 5, 1997, defendant told inmate C that inmate Leonard Swartz "was a child molester" who "didn't belong on the face of the earth for what he did and he needs to be dealt with." Defendant said that "one of his missions while in prison was to take care of the scum such as that, that people with crimes like that didn't belong. They didn't belong alive." Defendant believed in "the White race taking care of their own," and that "over the years [the White] race had gotten soft, and he couldn't believe the people they were letting walk around nowadays." Defendant was known to approach young, new prisoners and "try to plant seeds in them as far as what the White race is all about and what they should do."

Defendant told inmate C that he, with another inmate, had "committed another stabbing in the same yard . . . and that they threw a shirt over [the victim's] head and stabbed him numerous times." Defendant then told inmate C that he would "take care of" Leonard Swartz himself.

At 11:25 a.m. on February 5, 1997, Officer Erica Carbajal was on duty in the dayroom in building B at SVSP when two inmates approached her and asked for some paperwork that was in a nearby office. She retrieved the paperwork and, when leaving the office, noticed that the dayroom was uncharacteristically quiet. She turned and saw inmate Leonard Swartz stagger toward her, covered in blood and clutching his hands to his throat. He fell to the floor in front of her. She sounded the alarm, ordered the inmates to drop to the floor where they stood, and summoned medical assistance.

At that same time, inmate F was gathering his belongings from his cell on the second tier to go to the showers when he heard the sounds of a fight. He turned and saw defendant punching and slapping another inmate, who was trying to fend him off, and then saw the other inmate grab his neck and defendant throw something. Inmate G heard the attack. He turned to see defendant and Swartz standing face to face, and defendant then made two quick motions that landed near Swartz's neck. Inmate A, who had been playing dominoes with Swartz just moments before the attack, witnessed the stabbing and identified defendant as the assailant.

Officer Tiffany Haro was the first to reach Swartz. She tried to staunch the flow of blood from his neck with a stack of paper towels from the office, and when that did not work, she and Officer Jeffrey Mantel placed Swartz in a chokehold to apply more pressure. Swartz nonetheless continued to bleed profusely while he was being carried on a stretcher to the infirmary, where staff began treatment. Shortly thereafter, he was transported by ambulance to Natividad Medical Center in Salinas.

Officers who arrived at the dayroom in response to the alarm saw trails and pools of blood. The officers instructed the inmates to move up against the walls of the dayroom, where they were searched for wounds, weapons, or any other relevant evidence. One officer discovered a shank on the floor near the pools of blood. The officers who searched defendant noted his hands were trembling and he was shaking. Inmate G observed that while defendant was being searched his legs shook. Officers conducted a Hemastix test*fn4 on defendant's hands; the test strip reacted positively for the presence of blood. During the test, defendant's hands continued to shake, his chest quivered, and he was sweating. None of the other inmates were shaking. When asked why he was shaking, defendant responded that he was cold. When asked why he was sweating if he was cold, defendant had no response.

The officer who collected defendant's clothing noted red spots on defendant's blue jeans and shoes. A blue chambray state-issued shirt was found in the nearby stairwell, draped over the handrail. It had red spots on the sleeves and was still wet with perspiration.

On February 22, 1997, 17 days after the attack, while still in the hospital, Leonard Swartz suffered an epileptic seizure and died. Forensic pathologist Dr. John Hain testified the underlying cause of death was the stab wound to the carotid artery in Swartz's neck. The wound had caused severe blood loss, which caused brain damage in the form of strokes, which in turn caused the fatal seizure.

Defendant was transferred to Corcoran State Prison following the attack, where he was housed with inmate J for a week in May 1997. Defendant admitted to inmate J that he had stabbed a fellow inmate at SVSP in November 1996, and that he was upset with himself for using an ice pick type of shank because he knew that weapon would not kill anybody. He was upset that that victim had lived. He admitted that while he was in administrative segregation for that stabbing, he made up a list of victims targeted for "hits" upon his return to the general population at SVSP. Defendant said he was "exalted" to have been released back to the same yard where he was before and where the inmates on his hit list were housed. He said "it was like a gift" when they put him "right in the building, right where he wanted to be to get that dude" who was at the top of his hit list. He knew the man to be a child molester and said he prepared to kill him by making a knife specifically for him. He sharpened one whole side of the weapon on the ceiling of his cell "so that when he stuck it in . . . it could be like a ripping piece, a killing piece." Defendant then told inmate J that he had lain in wait for his victim in the dayroom. He had stood by a table with his leg propped up on one of the stools and the shank in his back pocket, waiting for the man to walk past him. When the man did so, defendant "did a full handball swing and just buried it in his neck," "[ripping] the dude's neck wide open." Defendant knew where the carotid artery was, and that "if you could sever that, the chances of a victim living [were] not very good." Defendant said he was able to clean his hands so there was no visible blood, but there was blood on his shoes. He reasoned he could explain away any blood on his hands and clothes by saying that "the dude bumped into me when he was leaking." He had set out to do the killing, he was happy about it, and he would have bragging rights when he was returned to Pelican Bay State Prison.

Defendant was transferred to Pelican Bay State Prison sometime in 1997 and was housed in the same yard as inmate R. Defendant admitted to him that at SVSP he had stabbed an inmate who survived and "got away with it" because he "had a change of clothes." Defendant's cellmate at Pelican Bay was inmate P, who testified that defendant told him the "gene pool should be cleansed of all defects, physical and mental," and "anybody with a defect should be whacked." Defendant told inmate P about the second stabbing and how he got blood on his shirt, took it off, grabbed someone else's shirt and put it on, and "they were trying to give him murder" for it.

Margaret Aceves, senior criminalist at the Department of Justice's DNA lab, concluded DNA in Swartz's blood matched that present on the pants collected from defendant on February 5, 1997.

Gary Craft, an investigator with the Monterey County District Attorney's Office, testified that inside a book confiscated from defendant's property at Pelican Bay State Prison were the handwritten words, "Nonexistence of the unfit has and will be the law of nature" and "The one who knows the secret does not speak; the one who speaks does not know the secret."

2. Defendant's Case

Defendant offered evidence to show that the inmates who testified against him had reason to falsify their stories because they were given benefits in exchange for their testimony, in that they were transferred to a "soft yard," a housing placement within the department of corrections that did not have the same inherent risks of danger as a general population yard. He also offered the testimony of a Department of Justice criminalist who examined defendant's cell at SVSP and found no signs of scraping.

B. Special Circumstance Phase

The prosecution presented certified documents that proved defendant had suffered three prior convictions for first degree murder in 1988 and was a life prisoner at the time of the capital murder.

C. Penalty Phase 1. The People's Case

The People offered as evidence in aggravation defendant's leading role in three homicides in Yolo County and participation in two in-prison assaults.

Over the course of the Labor Day weekend in 1987, when he was a 17-year-old high school student, defendant, armed with a shotgun, and a friend, armed with a handgun, went to Portuguese Bend, a slough northwest of Sacramento, to "drink and party and shoot our guns off." They noticed a fisherman with a pickup truck camping near the water. Defendant told his friend he wanted to use the fisherman's truck to rob a nearby bank and was willing to shoot the fisherman in order to get the truck. The two friends approached the fisherman, and after a few minutes of conversation, when the fisherman knelt down to set a hook, defendant shot him in the back of the head. Defendant and his friend dumped the body in the slough, took the truck, and after driving around for a while drove the truck into the slough.

The following Tuesday, defendant skipped school and, with his uncle's handguns, again visited the slough with a friend, where they ran into a couple who were fishing. Defendant told his friend he wanted to take their car to use to rob a bank. After a few minutes of conversation, defendant shot the woman in the back and then continued shooting, hitting and killing the man. When the woman continued to scream, defendant shot her in the head, killing her. Defendant was "jovial" when he threw their bodies and belongings into the slough and took their car. Defendant and his friend drove to Oregon, where they were apprehended.

Defendant eventually pleaded guilty to the three murders and was sentenced to a term of 52 years to life imprisonment. He was serving this term in ...

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